Court Information

Ontario Court of Justice

Date: 2016-09-09

Court File No.: Peterborough 15-1497

Parties

Between:

Her Majesty the Queen

— And —

Jonathan Mulligan

Judicial Officer and Counsel

Before: Justice S. W. Konyer

Heard on: September 2, 2016

Reasons for Judgment released on: September 9, 2016

Counsel:

• Mr. A. Midwood — counsel for the Crown
• Mr. D. McFadden — counsel for the defendant Jonathan Mulligan

Judgment

KONYER J.:

Introduction

[1] Jonathan Mulligan is charged with driving while his ability was impaired by alcohol and driving with more than the legal limit of alcohol in his blood on June 14, 2015. At trial, the defence claimed that Mr. Mulligan's right to be secure from unreasonable search and seizure, as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms, was infringed because the police did not have reasonable grounds to arrest him for the offence of impaired driving and that the warrantless seizure of his breath samples which followed his arrest was unreasonable. Further, the defence claimed that Mr. Mulligan's right to counsel, as guaranteed by s. 10(b) of the Charter, was infringed because the police did not take proper steps to permit him to contact his counsel of choice. As a remedy for these breaches, the defence sought an exclusion of the results of the analysis of his breath samples. In relation to the impaired driving charge, the defence argued that the evidence does not prove beyond reasonable doubt that Mr. Mulligan's ability to operate a motor vehicle was impaired by alcohol.

[2] The issues I must decide are:

1. Whether the Crown has proven, on a balance of probabilities, that the police had reasonable and probable grounds to arrest Mr. Mulligan for the offence of impaired driving;

2. Whether Mr. Mulligan has proven, on a balance of probabilities, that his right to counsel was infringed;

3. In the event that I find one or more Charter breaches, whether the results of the analysis of his breath samples ought to be excluded; and,

4. Whether the Crown has proven, beyond reasonable doubt, that Mr. Mulligan's ability to operate a motor vehicle was impaired by alcohol.

[3] In order to resolve these issues, it is necessary to review the facts in some detail.

Facts

[4] Mr. Mulligan's vehicle was stopped by police shortly after 4:00 a.m. on June 14, 2015. His vehicle was stopped randomly for a sobriety check of the driver under the authority of the Highway Traffic Act, and no issue was taken as to the validity of the stop. No unusual driving was noted prior to or during the course of the vehicle stop. Once Mr. Mulligan's vehicle stopped, PC Clarke approached the driver's side, while PC Donnelly approached the passenger side. Mr. Mulligan was the driver and sole occupant of the vehicle. PC Clarke made the usual demands for identification and vehicle information, and testified that Mr. Mulligan's eyes were glassy, droopy and bloodshot, that his speech was slurred, and that he had an odour of an alcoholic beverage on his breath. He asked Mr. Mulligan if he had consumed any alcohol, and received a negative response. Despite this response, based on his observations, PC Clarke formed a suspicion that Mr. Mulligan had alcohol in his body. Accordingly, he made a demand that Mr. Mulligan provide a sample of his breath into an Approved Screening Device, and asked Mr. Mulligan to exit his vehicle and accompany him to the police cruiser parked directly behind his vehicle for this purpose. No issue is taken as to the validity of this demand.

[5] PC Clarke testified that he led Mr. Mulligan to the cruiser, but that he either walked backwards or twisted his torso in order to keep an eye on Mr. Mulligan. He could not be sure which method he used, but said that he would have used one of these methods in order to observe Mr. Mulligan for two reasons – officer safety and evidence gathering. As Mr. Mulligan walked, he appeared to lose his balance at one point and took a step to his left. He did not stumble or fall, and corrected himself without assistance. This was not observed by PC Donnelly, who was making her way back to the cruiser from the passenger side of Mr. Mulligan's vehicle.

[6] PC Clarke directed Mr. Mulligan to the passenger side of the police cruiser, so as to be away from any traffic on the roadway. PC Clarke began readying the ASD in order to administer the test to Mr. Mulligan, when he began to notice that Mr. Mulligan was swaying forwards and backwards from his hips, though his feet remained steady. PC Donnelly did not recall seeing this action, despite the fact that she was observing Mr. Mulligan from a short distance away for officer safety reasons. She did recall that he repeatedly put his hands in his pockets, and had to be ordered more than once to remove his hands from his pockets.

[7] At the side of the cruiser, while preparing the ASD for use, PC Clarke had further conversation with Mr. Mulligan. He questioned him about where he was going, since his location was some distance from the address on his driver's licence. Mr. Mulligan apparently told the officer that he had moved but not yet updated his information with the MTO. PC Clarke also pointed out to Mr. Mulligan the indicia of alcohol consumption that he had noted, and asked Mr. Mulligan again if he had been drinking. Again, Mr. Mulligan denied that he had consumed any alcohol. PC Clarke testified that Mr. Mulligan's speech continued to be slurred, that he continued to detect an odour of an alcoholic beverage from his breath, and that his eyes continued to appear glassy, bloodshot and droopy.

[8] According to PC Clarke, the additional indicia that he observed - the loss of balance while walking and the swaying while the ASD was being readied - coupled with the continued observations of Mr. Mulligan's eyes, breath and speech, all led him to conclude that Mr. Mulligan's ability to operate a motor vehicle was impaired by alcohol. Accordingly, he informed Mr. Mulligan that he was under arrest for impaired operation, and decided to dispense with testing by way of the ASD.

[9] At this point, there appears to have been a brief and minor struggle between PC Clarke and Mr. Mulligan. The officer claims that Mr. Mulligan was non-compliant and that he had to apply some force to gain control of him and to apply restraints. Mr. Mulligan claims that PC Clarke manhandled him with unnecessary force.

[10] In any event, Mr. Mulligan was lodged in the rear of the police cruiser, informed of the reason for his arrest, informed of his right to counsel, cautioned, and read a proper demand for samples of his breath. He said that he understood his right to counsel and expressed a wish to speak to Mr. McFadden, a prominent local defence lawyer. In response to the demand, he acknowledged that he said words to the effect of "I ain't doing shit."

[11] He was then transported to the local OPP detachment. On arrival, PC Clarke took steps to implement Mr. Mulligan's right to counsel. He again asked Mr. Mulligan if he wished to speak to a lawyer and was told that he wished to speak to either Mr. McFadden, or his associate Mr. Burgis, also a prominent local defence lawyer. PC Clarke had access to phone numbers which he believed to be the home phone numbers for both Mr. McFadden and Mr. Burgis. At 4:45 a.m., he called the home number for Mr. McFadden. There was no answer, but the call was picked up by a voice mail. PC Clarke did not leave a message. He then called the home number for Mr. Burgis at 4:46 a.m., which was also not answered but went to voice mail. Again, PC Clarke did not leave a message.

[12] PC Clarke then returned to Mr. Mulligan, and informed him that neither lawyer was "picking up". He said that Mr. Mulligan then asked him to call duty counsel, which would have been part of the standard informational component provided to Mr. Mulligan earlier when the right to counsel was read to him from his police card. He did not inform Mr. Mulligan that both Mr. McFadden and Mr. Burgis had voice mail, or that he had declined to leave a message on either of their voice mail. He said he informed Mr. Mulligan that he could continue to try to contact either of his chosen counsel, but that Mr. Mulligan at that time requested to speak to duty counsel, which was done.

[13] Mr. Mulligan testified on the Charter voir dire that he was never told that he could wait for an opportunity to speak to either Mr. McFadden or Mr. Burgis, and that assumed that duty counsel was his only option. He did speak to duty counsel for six minutes. Afterwards, he was asked by PC Clarke if he was satisfied with the legal advice that he had received, and said yes. Mr. Mulligan testified that he felt he had no choice but to agree, especially considering the way he had been physically mistreated, in his view, by PC Clarke at the time of his arrest.

[14] Custody of Mr. Mulligan was then turned over to PC Eberhardt, a Qualified Technician. Prior to administering any tests, PC Eberhardt asked Mr. Mulligan if he had spoken to counsel, and asked if he was satisfied with the advice he had received. This conversation in the breath room was recorded. He said to Mr. Mulligan "you have just come in from speaking to duty counsel, are you satisfied?" to which Mr. Mulligan replied "yes". Mr. Mulligan was then told that he had the right to speak with counsel at any point, was asked again if he was satisfied with the rights he had received, to which Mr. Mulligan responded affirmatively.

[15] The Certificate of a Qualified Technician was filed as Exhibit 1, and states that two samples of Mr. Mulligan's breath were analyzed to be 159 and 167 mg of alcohol per 100 ml of blood respectively. No issue was taken as to the timing of the analyses, or the admissibility of the Certificate. PC Eberhardt was never asked about any observations that he made of Mr. Mulligan's level of impairment, if any.

Section 8 Analysis

[16] It is conceded that PC Clarke subjectively believed that Mr. Mulligan's ability to operate a motor vehicle was impaired by alcohol. The issue is whether his belief was objectively reasonable. The test is not an overly onerous one: R. v. Wang, 2010 ONCA 435. I must ask myself whether the officer's opinion was supported by objective facts. In this case, the uncontradicted facts before me are that Mr. Mulligan had an odour of alcohol emanating from his breath, that his eyes were glassy, bloodshot and droopy, that his speech was slurred and that he exhibited some difficulty with his balance. Though each symptom in isolation may be due to some other credible explanation, I am satisfied that in their totality these observations objectively support PC Clarke's subjective belief that Mr. Mulligan's ability to drive was impaired by alcohol.

[17] The situation is unusual because PC Clarke was in the process of administering an ASD when his belief shifted from a belief that Mr. Mulligan had alcohol in his body to a belief that Mr. Mulligan was impaired by alcohol. Although it may have been more logical for the officer to have simply administered the simple roadside screening test in any event, that is not the test. On the uncontradicted evidence before me, the officer had sufficient grounds to arrest Mr. Mulligan for the offence of impaired driving.

[18] Accordingly, the Crown has met its onus, and I find that there was no infringement of Mr. Mulligan's s. 8 rights.

Section 10(b) Analysis

[19] The right to counsel is a fundamental right guaranteed to detained and arrested persons, and is enshrined in section 10(b) of the Canadian Charter of Rights and Freedoms. At the same time, however, the right to counsel is not an absolute guarantee of the right to counsel of choice. In R. v. Van Binnendyk, [2007] O.J. No. 2899, the Ontario Court of Appeal explained that "[w]hile an accused person has the right to counsel of choice, that right is not absolute. If the lawyer chosen is not available within a reasonable amount of time, the accused person will be expected to exercise the right to counsel by calling a different lawyer" [para. 10]. The court goes on to note that the onus of proving a 10(b) infringement is on the accused, and states that a claimant must "prove as well that he acted with reasonable diligence in the exercise of his right to choose counsel" [para. 11].

[20] Where an accused person claims that his or her right to counsel has been infringed because of insufficient efforts made by the police to contact the accused's counsel of choice, the inquiry must focus on the reasonableness of the efforts made by the police: see R. v. Pickard, [2006] O.J. No. 4123 at para. 24; R. v. Jurewicz, [2001] O.J. No. 1276 at para. 23; R. v. Casselman, [2001] O.J. No. 5484 at para. 16. The question is not simply whether the police could have done more to contact the chosen counsel; rather "[t]he determinative factor is whether the police did take some good faith step to facilitate contact with counsel of choice. Where the police make some good faith effort, an accused cannot prove a breach of s. 10(b) simply by identifying some feasible act the police failed to take in order to contact counsel of choice": R. v. Blackett, [2006] O.J. No. 2999 at para. 38 [emphasis added].

[21] The requirement that the police act reasonably and in good faith is grounded in the importance of the right to counsel and the fact that arrested persons are at the mercy of the police in exercising this right. I agree with Justice Selkirk in R. v. Hess, [2005] O.J. No. 3650, where he held that "if one is to make the accused completely dependent on information from the police in determining how to contact his lawyer, then an obligation falls to the police to do all that is reasonably possible to accommodate the accused's wishes and to ensure that any information provided to the accused is accurate to the best of the officer's knowledge, after taking all reasonable steps to inform himself of an accurate state of affairs." [para. 32]

[22] In Mr. Mulligan's case, I find that the police failed to take reasonable steps to facilitate his right to counsel of choice. The arresting officer placed a phone call to both Mr. McFadden and his associate, Mr. Burgis. In both instances, the calls were not answered and were transferred to voice mail. Inexplicably, the arresting officer did not leave a message for either of the lawyers. Instead, he told Mr. Mulligan simply that the lawyers "were not picking up". While this was technically true, he did not convey to Mr. Mulligan that each had voice mail, he did not ask Mr. Mulligan if he wanted messages left, and he failed to inform Mr. Mulligan of his right to wait for a reasonable period to hear back from his chosen counsel. These events occurred 40 minutes after Mr. Mulligan's arrest. There was no situation of urgency. Failing to inform Mr. Mulligan of the true state of affairs, that a message could be left and that he had the right to wait for counsel of choice to return his call, was unreasonable and did not constitute a good faith effort to contact Mr. Mulligan's chosen counsel.

[23] It matters not, in my view, whether it was the officer or Mr. Mulligan who broached the subject of duty counsel at this stage. Mr. Mulligan, dependent on information provided by the police, was operating with incomplete and misleading information when he placed the call to duty counsel. In my view, in the circumstances of Mr. Mulligan's case, the fact that the police placed a call to duty counsel one minute after failing to leave a message for his chosen lawyer in a non-urgent situation does not cure the breach of his right to counsel of choice.

[24] In R. v. Richfield, [2003] O.J. No. 3230, the Ontario Court of Appeal found there was no 10(b) breach where the accused requested counsel of choice, the police called counsel's number, left a message, informed Mr. Richfield that a message had been left, waited for over an hour for the lawyer to call back in a drinking and driving case, and refrained from attempting to elicit incriminating evidence from Mr. Richfield during that time. When Mr. Richfield was informed that his counsel of choice had not returned the call, he chose not to request another lawyer or duty counsel, and the court held that he was not reasonably diligent in exercising his right to counsel. I cannot make the same finding in Mr. Mulligan's case, as the police chose not to inform Mr. Mulligan of the true state of their efforts at contacting his chosen counsel.

[25] R. v. Littleford, [2001] O.J. No. 2437 is an endorsement from the Court of Appeal dismissing an appeal from the trial judge's finding that Mr. Littleford's 10(b) rights had not been breached. A call was placed by the police to Mr. Littleford's counsel of choice, a message was left, the call was not returned and duty counsel was contacted instead. The trial judge found that Mr. Littleford appeared to be satisfied with this process, and did not request that further efforts be made to contact his own lawyer. The distinction between Littleford and the case before me is that Mr. Mulligan was never informed of the steps taken by police to contact his chosen counsel, and was therefore not able to make a meaningful decision as to whether to continue to pursue those efforts.

[26] For all of these reasons, I find that the police failed to make good faith or reasonable efforts to contact Mr. Mulligan's counsel of choice. I am satisfied that Mr. Mulligan has proven a breach of his s.10(b) Charter right on a balance of probabilities.

Section 24(2) Analysis

[27] In order to determine whether the admission of results of the analysis of Mr. Mulligan's breath samples would bring the administration of justice into disrepute, I must "assess and balance the effect of admitting the evidence on society's confidence in the justice system": R. v. Grant, 2009 SCC 32 at para. 71. There are three branches to the section 24(2) inquiry: first, I must consider the seriousness of the Charter-infringing state conduct; second, I must weigh the impact of the infringement on Mr. Mulligan's Charter-protected interests; and third, I must also consider society's interest in an adjudication of the case on its merits.

[28] In my view, the Charter-infringing state conduct in Mr. Mulligan's case was moderately serious. Although the police failed to take reasonable steps to respect his right to counsel of choice, they did not act in a deliberate manner designed to frustrate his ability to speak to counsel entirely. Mr. Mulligan, who was clearly vocal and able to articulate his displeasure to the police at various times throughout his arrest and detention, three times confirmed to two different officers that he was satisfied with his conversation with duty counsel. I agree with the Crown that this is a significant factor which makes the breach less serious. The first branch of the 24(2) inquiry therefore moderately favours the exclusion of the evidence.

[29] The impact on Mr. Mulligan's Charter-protected interests was not significant in the circumstances. Though he was not able to speak to his counsel of choice at 4:45 a.m., he spoke to qualified duty counsel for as long as he wished before the police followed through with the demand that he provide breath samples. No issue has been raised as to the substantive quality of the advice Mr. Mulligan received. He himself expressed satisfaction with his consultation with duty counsel. After this consultation, he did nothing to incriminate himself by way of statements or submitting to testing beyond providing breath samples, which he was required by law to provide. I conclude that there was no significant impact on his Charter-protected interests, and this line of inquiry is therefore neutral.

[30] On the third branch of the Grant test, I must recognize that drinking and driving remains a matter of serious public concern, and that there is a strong societal interest in having criminal allegations of driving with excessive blood-alcohol levels resolved on their merits. This factor strongly favours the inclusion of the results of the analyses of Mr. Mulligan's breath samples.

[31] I find, therefore, that the societal interest in the adjudication of this case on its merits outweighs the seriousness of the state's infringement of Mr. Mulligan's Charter-protected interests. The balancing of the Grant factors leads me to the conclusion that the admission of the evidence of the analysis of Mr. Mulligan's breath samples would not bring the administration of justice into disrepute despite the breach of his 10(b) rights. This evidence is therefore admitted. There being no other evidence before me on the charge under s.253(1)(b), Mr. Mulligan is found guilty on that count.

The Impaired Driving Charge

[32] On a totality of the evidence, I have a reasonable doubt that Mr. Mulligan's functional ability to operate a motor vehicle was impaired to any degree by the consumption of alcohol. He drove in a normal manner and the traffic stop was made completely at random. I accept that he may have had some slight difficulty with balance or movement after being removed from his vehicle at the roadside, but I cannot properly assess the significance of these actions given the conflicts in testimony between the two officers observing Mr. Mulligan.

[33] I also cannot place any real weight on the conclusory assertion by PC Clarke that Mr. Mulligan's speech was slurred without further description of the nature of the speech pattern that would enable me to reach an independent conclusion. PC Clarke used this observation to form grounds for arrest, as he was entitled to do. His observations were based on minimal conversation with Mr. Mulligan at the roadside. I must base my decision on the totality of the evidence. The qualified technician, who also had significant dealings with Mr. Mulligan, was never asked about his manner of speech or any other sign of physical impairment, nor was he asked his opinion as to Mr. Mulligan's ability to operate a motor vehicle. From what I have seen on the breath room video, which was filed as an exhibit, I cannot be sure that Mr. Mulligan was physically impaired by alcohol. It is also significant that PC Donnelly had no recollection of any difficulties by Mr. Mulligan with balance or walking, observations that one would have expected an experienced police officer to record during the course of an impaired driving investigation.

[34] Accordingly, I have a reasonable doubt on this count, and Mr. Mulligan is found not guilty of impaired driving.

Released: September 9, 2016

Signed: Justice S. W. Konyer